CHIEF JUSTICE STARCHER, deeming himself disqualified, did not participate in the
decision of this case.

JUDGES RISOVICH and WILKES, sitting by temporary assignment.

SYLLABUS BY THE COURT

1. In the West Virginia courts, claims of ineffective assistance of counsel
are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was deficient under
an objective standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings would have been different. Syl.
P. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

2. In reviewing counsel's performance, courts must apply an objective
standard and determine whether, in light of all the circumstances, the identified acts or
omissions were outside the broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or second-guessing of trial counsel's
strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the case at issue. Syl. P. 6, State
v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

3. A habeas corpus proceeding is not a substitute for a writ of error in that
ordinary trial error not involving constitutional violations will not be reviewed. Syl. Pt. 4,
State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).

4. Pursuant to Rule 1.11 of the West Virginia Rules of Professional
Conduct, the fact that an assistant prosecuting attorney previously represented a criminal
defendant while in private practice does not preclude the prosecutor's office as a whole from
participation in further prosecution of criminal charges against the defendant, provided that
the circuit court has held a hearing on any motion to disqualify filed on this basis and
determined that the assistant prosecutor has effectively and completely been screened from
involvement, active or indirect, in the case. Syl. Pt. 2, State ex rel. Tyler v. MacQueen, 191
W.Va. 597, 447 S.E.2d 289 (1994).

Per Curiam:

This is an appeal by Charles Ray Edgell, appellant/petitioner (hereinafter
referred to as Edgell) from an order by the Circuit Court of Monongalia County denying
him habeas corpus relief. Edgell had alleged several grounds of ineffective assistance of
counsel during his trial for sexual offenses. In this appeal, he contends the circuit court
committed error by failing to conclude that trial counsel was ineffective by: (1) failing to call
a specific witness; (2) failing to seek a continuance because of late disclosed evidence by the
prosecutor; (3) failing to object to closing remarks by the prosecutor; and (4) failing to object
to communication by the trial judge with the jury. Edgell further contends that the circuit
court committed error in ruling that the trial judge improperly denied his motion for acquittal.
Finally, Edgell contends that the circuit court committed error by failing to appoint a special
prosecutor for the habeas proceeding. Based upon the parties' arguments on appeal, the
record designated for appellate review, and the pertinent authorities, we affirm the decision
of the Circuit Court of Monongalia County.

I.

FACTUAL AND PROCEDURAL HISTORY

Edgell was found guilty of three counts of second degree sexual assault of a
thirteen year old girl on December 9, 1994. He was sentenced on January 18, 1995 to three
concurrent 10 to 20 year terms of imprisonment. Edgell timely filed a petition for appeal
with this Court. After careful consideration, this Court denied that appeal.

Next, Edgell filed a petition for a writ of habeas corpus in the circuit court on
September 13, 1995. Counsel was appointed for the habeas proceeding. On June 28, 1996,
the circuit court denied the habeas relief. This Court subsequently denied the appeal on
March 19, 1997.

Notwithstanding Edgell's numerous appeals,See footnote 1
1 he again filed a habeas
proceeding with this Court on September 30, 1997. On October 2, 1997, we issued an order
requiring the circuit court to conduct an omnibus hearing on the habeas petition. Counsel
was appointed to represent Edgell at the omnibus hearing. The circuit court conducted an
evidentiary hearing on May 18, 1998. On September 17, 1998, the circuit court issued an
order denying the habeas relief. From the September 17, 1998, circuit court order Edgell
now appeals.

II.

STANDARD OF REVIEW

We have held that [f]indings of fact made by a trial court in a post-conviction
habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless
such findings are clearly wrong. Syl. Pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va.
479, 212 S.E.2d 69 (1975). It was further indicated by this Court in Phillips v. Fox, 193
W.Va. 657, 661, 458 S.E.2d 327, 331 (1995) that: In reviewing challenges to the findings
and conclusions of the circuit court, we apply a two-prong deferential standard of review.
We review the final order and the ultimate disposition under an abuse of discretion standard,
and we review the circuit court's underlying factual findings under a clearly erroneous
standard. Questions of law are subject to a de novo review. SeeStuckey v. Trent, 202
W.Va. 498, ___, 505 S.E.2d 417, 420 (1998).

III.

DISCUSSION

A. Ineffective Assistance of Counsel Claim

Edgell brings this proceeding alleging ineffective assistance of counsel during his
criminal trial. In syllabus point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995),
Justice Cleckley articulated the test used to evaluate a claim of ineffective assistance of
counsel. State v. Miller held:

In the West Virginia courts, claims of ineffective
assistance of counsel are to be governed by the two-pronged test
established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984): (1) Counsel's performance was
deficient under an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have
been different.

The Miller decision further noted:

In reviewing counsel's performance, courts must apply an
objective standard and determine whether, in light of all the
circumstances, the identified acts or omissions were outside the
broad range of professionally competent assistance while at the
same time refraining from engaging in hindsight or
second-guessing of trial counsel's strategic decisions. Thus, a
reviewing court asks whether a reasonable lawyer would have
acted, under the circumstances, as defense counsel acted in the
case at issue.

Syl. Pt. 6, Miller.
Justice Cleckley later clarified in syllabus point 5 of State ex rel. Daniel v. Legursky,
195 W.Va. 314, 465 S.E.2d 416 (1995), that [i]n deciding ineffective of assistance claims,
a court need not address both prongs of the conjunctive standard of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995), but may dispose of such a claim based solely on a
petitioner's failure to meet either prong of the test. The decision in Legursky crystallized
two other important observations:

The fulcrum for any ineffective assistance of counsel
claim is the adequacy of counsel's investigation. Although there
is a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance, and judicial
scrutiny of counsel's performance must be highly deferential,
counsel must at a minimum conduct a reasonable investigation
enabling him or her to make informed decisions about how best
to represent criminal clients. Thus, the presumption is simply
inappropriate if counsel's strategic decisions are made after an
inadequate investigation.

In determining whether counsel's conduct falls within the
broad range of professionally acceptable conduct, this Court will
not view counsel's conduct through the lens of hindsight. Courts
are to avoid the use of hindsight to elevate a possible mistake
into a deficiency of constitutional proportion. Rather, under the
rule of contemporary assessment, an attorney's actions must be
examined according to what was known and reasonable at the
time the attorney made his or her choices.
Syl. Pts. 3 & 4, Legursky.

It is from this general framework that we must analyze each of Edgell's
separate concerns regarding his claims of ineffective assistance of counsel.

1. Failing to Call a Specific Witness

Edgell first contends that it was ineffective assistance of counsel for the failure
of his attorneys to call Kim Roth as a witness. Ms. Roth was a caseworker employed by the
West Virginia Department of Health and Human Resources. Ms. Roth took the victim from
her home on the day of the sexual assault and transported her to Romney Child-Care Center,
where she had been living.See footnote 2
2 The evidence at trial indicated the victim was sexually assaulted
during the morning hours in May, 1992.See footnote 3
3 However, the victim actually testified that Ms.
Roth picked her up during the evening hours on the day of the sexual assault.See footnote 4
4 However, Ms.
Roth's log entry revealed that she transported the victim during the morning hours. During
the habeas proceeding, Edgell contended that it was critical to have Ms. Roth called as a
witness, because, among other things, she could have testified that the victim was picked up
during the morning of the assault thereby contradicting the victim's testimony.

The circuit court concluded that Edgell did not receive ineffective assistance
of counsel because of the failure to call Ms. Roth. The circuit court's order addressed the
issue as follows:

. . . At that [omnibus] hearing, the testimony of Kim Roth and
other absent witnesses was introduced by [Edgell] and [his] trial
counsel testified with regard to their handling of the trial in this
matter . . . [Edgell's] trial counsel made legitimate tactical
decisions not to call certain witnesses in the trial of this matter
out of a concern that those witnesses would contradict or explain
in a fashion adverse to the Defendant matters contained in
DHHR records which were introduced at the trial of this matter.

The record supports the circuit court's finding that Edgell's trial counsel made
a specific tactical decision not to call Ms. Roth. Counsel believed that Ms. Roth might
explain away the log entry. Instead of calling Ms. Roth as a witness, the trial attorneys
introduced the log entry through another social worker. The social worker knew nothing
about the incident described in the log entry.

The State argues that no prejudice resulted from failing to call Ms. Roth as the
log entry was actually introduced into evidence. The State further contends that the jury
heard the victim's version of the events. Even though the log entry contradicted the victim's
testimony, the jury chose to believe the victim.

In summary, the defense attorneys made a tactical decision to allow the log
entry to be introduced in such a manner as to make it impossible to discredit. We believe
that the decision to introduce the log entry in a manner that protected it from being
impeached was a reasonable tactical decision. However, we do have concerns about the trial
counsel's failure to even attempt to contact or interview Ms. Roth as a potential witness. It
seems that a reasonable criminal defense attorney would have, at least, contacted Ms. Roth.
It appears to this Court that it was imperative that Ms. Roth be contacted and questioned by
defense counsel. Therefore, under the first prong of the Strickland-Miller test, defense
counsel's performance was deficient under an objective standard of reasonableness.

Now, the issue is to determine whether there is a reasonable probability that,
but for counsel's error, the result of the trial would have been different. It is the second prong
of the Strickland-Miller test that Edgell must now overcome. Unfortunately, Edgell has
failed to point to any specific testimony that Ms. Roth would have given, other than restating
what was in the log entry. During the omnibus hearing, Ms. Roth testified that she could not
add to, nor subtract from the log entry. Therefore, while it was unreasonable for defense
counsel to fail to contact Ms. Roth, no prejudice resulted therefrom.

2. Failing to Seek a Continuance Because of
Late Disclosed Evidence by the Prosecutor

Edgell contends that defense counsel's failure to seek a continuance after the
late disclosure of evidence by the State constituted ineffective assistance of counsel. The
evidence in question was a scrapbook that was created in part by the victim. The scrapbook
was a mixture of pictures and writings concerning the sexual assault. The State did not
produce the scrapbook until the day before trial. The trial court admitted into evidence those
portions of the scrapbook that were actually created by the victim.

The circuit court concluded that defense counsel's failure to seek a continuance
due to late disclosure of the scrapbook did not constitute ineffective assistance of counsel.
The circuit court ruled as follows: Furthermore, the Court is convinced that the failure of
trial counsel to ask for a continuance after the State's late disclosure of the scrapbook was
not ineffective assistance of counsel. Both trial counsel testified at the Omnibus hearing that
the information contained in the scrapbook was not that difficult to deal with and that they
had adequate opportunity to review the scrapbook and to prepare to respond to it.

Defense counsel objected to the use of the scrapbook. The trial judge overruled
the objection. Edgell contends that defense counsel should have vouched the record by
requesting a continuance to prepare a defense to the scrapbook. During the omnibus hearing
both defense counsel testified that the material in the scrapbook did not necessitate a
continuance. Edgell strongly suggests that a continuance was necessary. However, Edgell
has suggested no reasonable basis to support the need for seeking a continuance. Late
disclosed evidence must present some inherent difficulty for the defense to justify a
continuance. We simply have not been shown by Edgell that the scrapbook presented an
inherent difficulty to his defense. Consequently, under the first prong of the Strickland-
Miller test, Edgell has failed to show that defense counsel's performance was deficient under
an objective standard of reasonableness.

3. Failing to Object to Closing Argument
Remarks by the Prosecutor

Edgell next contends that defense counsel was ineffective in failing to object
to certain closing remarks by the prosecutor. Edgell argues that the remarks constituted an
improper vouching for the credibility of the victim. He also asserts that the prosecutor made
improper statements as to his guilt.See footnote 5
5 The circuit court found no basis for an objection by
defense counsel to remarks made by the prosecutor during the closing argument. The circuit
court ruled: Nothing stated by the Prosecutor in closing argument was improper, nor did
it go beyond the perimeters of appropriate zealous representation of the State of West
Virginia.

We cannot conclude that the prosecutor's remarks were improper. A
prosecutor is allowed to argue all reasonable inferences from the facts presented at trial. The
prosecution's comments on the witnesses' testimony were based on reasonable inferences
from the facts. The remarks did not include any interjection of the prosecutor's personal
opinion as to the truthfulness of the witnesses. This Court held long ago in the single syllabus
of State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931):

An attorney for the state may prosecute vigorously as
long as he deals fairly with the accused; but he should not
become a partisan, intent only on conviction. And, it is a
flagrant abuse of his position to refer, in his argument to the
jury, to material facts outside the record, or not fairly deducible
therefrom.

Consequently, under the first prong of the Strickland-Miller test, Edgell has failed to show
that defense counsel's performance was deficient under an objective standard of
reasonableness.

4. Failing to Object to Communication
by the Trial Judge with the Jury

Edgell argues that he received ineffective assistance of counsel when his
attorneys failed to object to the manner in which the trial judge handled jury questions. The
jury forwarded the following question to the trial judge: Judge Starcher: If the jury is not
unanimous in their vote of 'guilty' or 'not guilty' do we automatically return a vote of 'not
guilty' or do we report that we are unable to reach a unanimous decision? The trial judge
sent the following response to the jury: Continue to deliberate ... but the answer is the latter,
i.e., either 'guilty' or 'not guilty' must be unanimous.

A second question was later submitted by the jury: Judge Starcher: We
would like to read the transcript of testimony from Ray Edgell and [the victim]. Also, can
we hear the tape of their testimony? The trial judge responded: Sorry, you cannot have
selected portions of the testimonial evidence (It would actually be impractical to provide the
jury a transcription of testimony). You must use your collective memories to decide the
facts.

The circuit court found that Edgell did not receive ineffective assistance of
counsel because his attorneys did not object to the manner in which the trial judge handled
the jury questions. We agree. Justice Cleckley indicated in syllabus point 3 of State v. Allen,
193 W.Va. 172, 455 S.E.2d 541 (1994) that [t]he proper method of responding to a written
jury inquiry during the deliberations period in a criminal case ... is for the judge to reconvene
the jury and to give further instructions, if necessary, in the presence of the defendant and
counsel in the courtroom. In Allen we reversed a third offense DUI conviction because the
trial court held several ex parte communications with the jury. Additionally, the defendant
nor defendant's counsel's had knowledge of the communication.

Here, the trial judge did not reconvene the jury to answer its questions. Unlike
Allen, the trial court communicated with defense counsel regarding the jury's questions and
the trial court's responses. Obviously, if the substance of the communication by the trial
judge with the jury misstated the law or reasonably conveyed some impermissible matter, it
would be reasonable to expect defense counsel to object to the communication. In this case,
the judge's responses were substantively accurate.

Edgell misinterprets the situation Allen sought to prevent. Allen was
concerned with ex parte communication by a trial judge with the jury. When defense counsel
has knowledge of the jury's request and has knowledge of the trial court's response, there
is no constitutional right to have the jury reconvened to give a response which in substance
is accurate. Assuming, without deciding, that a reasonable attorney would have and should
have objected to the trial judge's failure to reconvene the jury, Edgell has not demonstrated
prejudice from such failure to object. The content of the trial judge's responses were
accurate and would have carried no greater or lesser meaning, whether conveyed by notes
or oral responses in court. Therefore, Edgell's argument fails.

B. Improperly Denying
Motion for Acquittal

Edgell filed a post-trial motion requesting acquittal based on the purported
inherently incredible testimony of the victim. The circuit court's habeas order stated:
Careful review [of the argument] indicates that this issue ... has been considered by this
Court on previous occasions and determined to be without merit. Our concern with this
issue, is that it is not a proper ground to assert in a habeas proceeding. Edgell's motion
presents no constitutional claim. We have held that [a] habeas corpus proceeding is not a
substitute for a writ of error in that ordinary trial error not involving constitutional violations
will not be reviewed. Syl. Pt. 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254
S.E.2d 805 (1979). Therefore, the denial of Edgell's motion for acquittal has no merit.

C. Failure of Circuit Court to Appoint a Special
Prosecutor for the Habeas Proceeding

Finally, Edgell requested the circuit court appoint a special prosecutor to
represent the State in the habeas proceeding because one of his trial attorneys, Belinda
Haynie, was now employed with the prosector's office. The circuit court, after holding a
hearing, denied the request. We find this issue equally to be without merit. This Court held
in syllabus point 2 of State ex rel. Tyler v. MacQueen, 191 W.Va. 597, 447 S.E.2d 289
(1994):

Pursuant to Rule 1.11 of the West Virginia Rules of
Professional Conduct, the fact that an assistant prosecuting
attorney previously represented a criminal defendant while in
private practice does not preclude the prosecutor's office as a
whole from participation in further prosecution of criminal
charges against the defendant, provided that the circuit court has
held a hearing on any motion to disqualify filed on this basis and
determined that the assistant prosecutor has effectively and
completely been screened from involvement, active or indirect,
in the case.

Edgell has failed to show that Ms. Haynie was not effectively screened from
contact with the prosecutor's office regarding his case. Edgell contends that because his
other defense counsel, William F. Byrne, spoke separately with the prosecutor and with Ms.
Haynie, there was an indirect failure to effectively screen Ms. Haynie. This argument is
meritless as it presents no evidence of Ms. Haynie consulting with the prosecutor about the
case. Obviously, Ms. Haynie could consult with Mr. Byrne because they both represented
Mr. Edgell at the trial. As such, we conclude no error resulted by the circuit court's failure
to appoint a special prosecutor for Edgell's habeas proceeding.

IV.

CONCLUSION

For the reasons set forth herein, we find that the Circuit Court of Monongalia
County committed no reversible error. As such, we affirm the circuit court's order.

Affirmed.

Footnote: 11Prior to our refusal of the habeas petition for appeal, Edgell filed a habeas petition
with this Court under our original jurisdiction. See W.Va. Const. art. VIII, § 3. We denied
that petition on December 5, 1996. Edgell filed a second habeas petition before the circuit
court. The circuit court dismissed the second habeas petition on June 12, 1997, on the
grounds that no new issues were presented in the petition. That ruling was not appealed to
this Court. A habeas petition was next filed by Edgell in the United States District Court for
the Northern District of West Virginia. The federal petition was dismissed without prejudice
as a result of Edgell's failure to exhaust his state court remedies.
Footnote: 22The victim was the daughter of the Edgell's girlfriend. The victim apparently was
a troubled youth and was not living at home. The victim had been visiting her mother for the
weekend when the sexual assaults occurred.
Footnote: 33The victim was thirteen years old at the time of the sexual assault.
Footnote: 44The victim's mother and siblings were not at home when the crime occurred.
Footnote: 55Edgell lists in his brief the following remarks as improper:
1 Let me suggest to you that there is no reason to disbelieve [the victim]. None. You can't
not believe her.
2. You can believe her when she tells you that Ray Edgell ... made her get on the bed and
hold still so he could perform oral intercourse on her. You can believe her because that's
what happened.
3. She told that story because that's what happened to her.
4. She told you the truth and the truth is that Ray Edgell is guilty. . . .
5. Dr. Kreig, what a pompous piece of work he was. [A defense witness]
6. She didn't tell you for any other reason beside the fact that it's the truth.